BOSWELL v. THE STATE OF NEW YORK, #2002-030-012, Claim No. 102874

Synopsis

Pro se inmate's Claim that Defendant's agents negligently failed to protect him
from an assault

by fellow inmate dismissed. Claimant failed to establish his claim by a
preponderance of the

credible evidence. No foreseeable risk, no known enemies, no retaliatory
actions by correction

officers

Case Information

UID:

2002-030-012

Claimant(s):

KEITH BOSWELL

Claimant short
name:

BOSWELL

Footnote (claimant name)
:

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name)
:

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

102874

Motion number(s):

Cross-motion
number(s):

Judge:

THOMAS H. SCUCCIMARRA

Claimant's
attorney:

KEITH BOSWELL, PRO SE

Defendant's
attorney:

HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBy: ELYSE ANGELICO, ASSISTANT ATTORNEY GENERAL

Third-party defendant's
attorney:

Signature date:

March 1, 2002

City:

White Plains

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

.

Decision

Keith Boswell, the Claimant herein, alleges in Claim number 102874 that
Defendant's agents failed to provide him with meaningful protection resulting in
an assault by fellow inmates while he was incarcerated at Sing Sing Correctional
Facility (hereafter Sing Sing). Trial of the matter was held at Sing Sing on
January 8, 2002.

Claimant testified that at about noon on July 10, 2000, "...I was in my cell
asleep, somehow it got opened....somebody came in and hit me on the back of my
head, and knocked me out, and did what they had to do to make the rest of the
incident."[1]

Claimant had apparently received several puncture wounds in his back, which he
did not report. He asserted that the State had been negligent because his cell
had been opened somehow, leaving him vulnerable, since no officer was in the
general area at the time of the incident and since "an officer is the only one
in control of the lock box", an officer must have opened the
cell.

It appears that "somebody dropped...[corrections officers] a note saying I was
stabbed by the inmate in M-3 cell..." A Sgt. M. Strumpfler found Claimant in
his cell at approximately 2:30 PM, still ostensibly asleep, and woke him up.
The sergeant took Claimant to the Officer in Charge area "...conducted an upper
body check and observed what appeared to be several puncture wound...[he]
immediately escorted...[Claimant] to medical for treatment." [Claimant's Exhibit
"1", Memorandum from Sgt. M. Strumpfler to Lt. Magwood dated 7/10/00].
Claimant asserts he was unaware of having been stabbed until he was roused from
his cell.

Claimant was escorted to the facility hospital, then sent to St. Agnes Hospital
for suturing. He had "a big puncture wound in the back of...[his] head." He
couldn't explain what had happened, because he didn't know. Thereafter, he was
offered protective custody, which he declined, and was served with a misbehavior
report alleging failure to report injury. [Claimant's Exhibit "1"].

Claimant stated that prior to the assault, he had made a claim against an
officer complaining of misbehavior on the officer's part. He testified that he
thought his cell must have been opened in retaliation. He also indicated that
"...unless you've put down for something [an activity], there's no reason for
your cell to be opened...the ‘go around' for the PM has me in the yard,
but I couldn't have been, I was sleeping in my cell..."

Investigation of the incident appears to have been inconclusive, though the
inmate in the cell beside Claimant's appears to have been the focus of the
investigation. [Claimant's Exhibit "1", Unusual Incident Report, and internal
memoranda concerning investigation].

No other witnesses testified.

While the State must provide inmates with reasonable protection against
foreseeable risks of attack by other inmates, [

Blake v State of New York, 259 AD2d 878 (3d Dept. 1999); Sebastiano v
State of New York, 112 AD2d 562 (3d Dept. 1985)], the State is not the
insurer of the safety of inmates, and the fact that an assault occurs does not
give rise to the inference of negligence (Sebastiano v State of New York,
supra.). In order to establish liability on the State's part, an
inmate claimant must allege and prove one of the following grounds: (1) the
victim was a known risk and the State failed to provide reasonable protection
(See, Sebastiano v State of New York,
supra.); (2) the State had notice that the assailant was dangerous
and refused to take the proper precautions [See, Littlejohn v
State of New York, 218 AD2d 833 (3d Dept. 1995); Wilson v State of New
York, 36 AD2d 559 (3d Dept. 1971)]; or (3) the State had notice and the
opportunity to intervene to protect the inmate victim and failed to act.
Smith v State of New York, 284 AD2d 741, 728 NYS2d 530 (3d Dept. 2001).
The mere fact that a correction officer is not present at the precise time and
place of an assault does not give rise to an inference of negligence absent a
showing that officials had notice of a foreseeable dangerous situation. Colon
v State of New York, 209 AD2d 842 (3d Dept. 1994); Padgett v State of New
York, 163 AD2d 914 (4th Dept. 1990), lv denied, 76 NY2d 711
(1990).

Additionally, the court must consider whether there was information which would
trigger any heightened awareness of a risk to this inmate - any "suspicious"
behavior such as an individual leaving an assigned work post, or stuffing
magazines in his shirt to avoid injury - to alert correction personnel of a
specific danger brewing.

See, e.g., Huertas v State of New York, 84 AD2d 650
(3d Dept. 1981).

Even an inmate's request for protective custody may not necessarily trigger a
specific duty to protect, if the inmate does "...not alert the
interviewing...[correction officers] of his past problems, a specific hazard or
a particular urgency to his situation."

Roudette v State of New York, 224 AD2d 808, 809 (3d Dept. 1996).

Additionally, the fact that officers may not have been present at the precise
time and place of the assault, does not give rise to liability.

Colon v State of New York, supra; Padgett v State of New
York, supra. "...[U]nremitting supervision..." is not required.
Colon v State of New York, supra, at 844. When the assault
occurred, it was dealt with in a comprehensive and appropriate fashion, and
immediate medical care was given.

Claimant was a very credible witness, and the assault he suffered was more than
unfortunate. Based upon this record, however, Claimant has failed to establish
that the State failed to provide him with reasonable protection against a
foreseeable risk of harm. There is no indication that his assailant was a known
enemy about whom he had alerted authorities. There is no evidence that
correction officers themselves engaged in retaliatory activity. Claimant has
failed to establish his claim, to a preponderance of the credible evidence, and
Claim Number 102874 must be dismissed in its entirety.